The High Court of Kerala and the Supreme Court of India have established through various judgments that a married woman cannot charge a man with rape based on a “false promise of marriage” if she is already legally married to someone else.
Why a Promise of Marriage is Untenable
In the case of XXX v. State of Kerala (2022), the Kerala High Court observed that a married woman is fully aware that a third party cannot legally marry her while her previous marriage still subsists. Therefore, any sexual intercourse that occurs under such circumstances is considered consensual.
The Court reasoned that since a second marriage is legally impermissible, a “promise to marry” cannot be viewed as a “misconception of fact” that would invalidate the woman’s consent.
Promise of Marriage is Invalid in Law
The courts have consistently held that a promise of marriage made to a person who is already married is not a valid or enforceable contract.
Contractual Illegality: In Anil Kumar v. State of Kerala [2021 (2) KLT 83], the Court held that such a promise is void under Section 23 of the Indian Contract Act. Because the promise itself is illegal, it cannot serve as the basis for a rape prosecution under the theory of “misconception of fact”, coming under Section 376 IPC/Section 63 BNS. The judgement has made it clear that where one of the parties to a relationship is in a subsisting marriage, there cannot be an allegation of rape on the false promise of marriage.
Separated but Not Divorced: In Babu v State of Kerala and Another (2022 (2) KLD 126), the Court clarified that even if a woman is living separately from her husband, if she is not legally divorced, a charge of rape based on a false promise to marry has no legal effect.
The Supreme Court’s Stance
In Shambhu Kharwar v State of UP and Another [ 2022(2) KLD 462 SC], the Supreme Court quashed an FIR where a married woman alleged rape after a long-term consensual relationship. The Court noted that the relationship spanned periods before, during, and after her marriage to another person.
The Supreme Court emphasized that while the power to quash an FIR must be exercised with caution, courts should not hesitate to do so if the facts—as in this case—clearly show a consensual relationship rather than a cognizable offence.
In Conclusion
For a “false promise of marriage” to attract a charge of rape, the victim must have been in a legal position to marry the accused.
If the woman is already married, the law presumes she understands the legal impossibility of the promise, making the sexual act consensual in nature.
The Kerala High Court clarifies that a married woman cannot claim to be “misled” by a promise of marriage because the law assumes every citizen knows that a second marriage without a valid divorce is a legal nullity.
